Public Liability Claims Against Councils for Highway Defects

Public highways - including roads, pavements and footways - are ordinarily maintained by local councils or other highway authorities in England and Wales. When defects in these highways - such as potholes, uneven surfaces or missing paving stones - cause personal injury, vehicle damage or property loss, those affected may consider a public liability claim against the responsible authority. However, the law imposes both duties on councils and defences that make these claims particularly fact‑sensitive. Understanding the legal framework, statutory duties, practical steps and common hurdles is essential for claimants and solicitors alike.

Legal Duty: The Highways Act 1980

Statutory Duty to Maintain

Under Section 41 of the Highways Act 1980, a highway authority - usually a county council or unitary authority - has a statutory duty to maintain highways maintainable at public expense. This includes ensuring roads and footpaths are kept in reasonable repair for their intended users. If those duties are neglected, and a dangerous defect contributes to an accident, the authority may be liable for resulting injury or loss.

To succeed in a claim, a claimant must usually show that:

• The defect was on a highway maintainable at public expense.
• The defect constituted a danger to users that was reasonably foreseeable.
• The failure to repair or maintain the defect caused the claimant's injury or damage.

This statutory duty essentially reflects the obligation to keep highways in such a condition that they do not present a danger to ordinary users.

What Counts as a Highway Defect?

Common highway defects that give rise to public liability claims include:

• Potholes in carriageways that damage vehicles or cause cyclists to fall.
• Uneven or raised paving slabs on footpaths leading to trips and falls.
• Subsidence or dips in road surfaces causing loss of control.
• Drainage failures that create persistent puddles or hidden hazards.

While minor surface imperfections do not automatically create liability, defects that present a real risk of harm can be considered actionable if the council fails to address them within a reasonable time.

How Claims Arise

Highway defect claims typically occur when a user:

• Trips and injures themselves on a defective pavement.
• Hits a pothole that causes suspension, tyre or wheel damage.
• Suffers personal injury due to slipping on an unmaintained surface.

Many councils publish their own guidance on how to make a compensation claim for injury or damage caused by highway defects. Claimants are usually required to complete a claims form and provide details about the defect, the location, date of incident and, where relevant, any police incident numbers.

Burden of Proof and Liability

The burden to prove that the council breached its statutory duty lies with the claimant. They must show that the defect was:

1. Present at the time of the accident.
2. Dangerous in the ordinary course of use by the public.
3. Caused the injury or damage suffered.

This requires evidence such as photographs of the defect, witness statements, inspection records (if available), and expert opinions on the road condition.

However, even if these elements are met, councils have significant statutory defences available under the Highways Act.

The Statutory Defence: Section 58 of the Highways Act 1980

Section 58 provides councils with a statutory defence where they can demonstrate that, at the time of the accident, they had:

• A reasonable system of inspections and maintenance in place, and
• Took such care as was reasonably required to ensure the highway was not dangerous for users.

This defence essentially allows the authority to show it was not negligent in its maintenance regime. If Section 58 is successfully established, the claim is likely to fail even if a defect caused the accident.

In practice, councils will often rely on evidence such as:

• Inspection schedules and records.
• Highway maintenance policies.
• Timescales for identifying and repairing defects.
• Reports from reactive repairs after public reports.

If inspections were regular and defects were addressed within policy repair windows (for example, marked for repair and fixed within a reasonable period), the council may avoid liability.

Practical Challenges in Highway Defect Claims

High Rate of Claim Rejections

Data on claims against councils shows that while the number of claims - especially for pothole damage - has risen significantly in recent years, only a small proportion result in compensation. Many claims are rejected because councils argue they had no prior knowledge of the specific defect or that they satisfied the Section 58 defence.

For instance, research on large local authorities revealed that around 74 % of rejected claims were due to councils asserting they were unaware of the defect prior to the accident.

Evidence and Proof

Council defences often hinge on demonstrating compliance with inspection routines. Claimants must therefore gather and preserve strong evidence promptly:

• Photographs of the defect showing size, depth and context.
• Medical or mechanic reports linking injuries or damage to the defect.
• Traffic or police reports if applicable.
• Records of reports made to the council before the incident.

Using tools like community reporting apps can also help establish the defect was known or should have been known by the authority.

Time Limits

As with most civil claims, there are statutory limits on when you must issue proceedings. Personal injury and damage claims against a council for highway defects are usually subject to a three‑year limitation period under the Limitation Act 1980. This runs either from the date of the incident or the date on which the claimant knew (or ought to have known) the injury or damage was significant and caused by the defect. Failure to start proceedings within this period may bar the claim.

Settlement and Court Proceedings

Many highway defect claims settle through negotiation without the need for court hearings. Councils or their insurers may agree to compensate if the evidence clearly undermines the Section 58 defence. More contentious cases may proceed to the County Court (often via the small claims track for lower value vehicle damage) for formal determination.

In more serious personal injury cases, where injuries and loss are substantial, claims may follow the Fast Track or other civil procedure tracks depending on value and complexity.

Key Takeaways

Claims against councils for highway defects arise when users suffer injury, vehicle damage or property loss due to dangerous defects in roads or footpaths. The legal foundation for these claims in England and Wales is the Highways Act 1980, which imposes a duty on highway authorities to maintain highways and provides a statutory defence under Section 58 if reasonable inspection and maintenance systems were in place.

Key practical points include:

• There is no automatic right to compensation simply because a defect exists; liability depends on breach of statutory duty and causation.
• Councils often successfully defend claims by showing they met legal inspection obligations.
• Strong evidence is central to overcoming statutory defences.
• Claims must be filed within statutory limitation periods, usually three years.

Public liability claims against councils for highway defects are common but challenging. Careful preparation and detailed evidence improve the chances of a successful outcome.